A panel of lawmakers approved a new rule that clarifies what records a Vermont inmate can obtain from their own case files, but blocks public access to prisoner grievances and almost all other offender records.
The Legislative Committee on Administrative Rules, which is made up of a mix of senators and representatives, took the unanimous action at meeting Thursday at the Statehouse.
The current inmate records law was adopted in 2016, with changes in both 2017 and 2018.
The most recent version called on the Department of Corrections commissioner to draft rules that weigh the public interest in deciding whether to release records, while still redacting information “that may compromise the safety of any person, or that is required by law to be redacted.”
Lawmakers involved in drafting the latest change to the inmate records law in 2018 had contended that the aim was to clarify what files would be available to prisoners in their own case files, not what would be made available to the public.
However, VTDigger, as well as the Vermont chapter of the American Civil Liberties Union, had argued that under the statute broader public access to such records was called for. A VTDigger editor also testified before LCAR on the rule.
That’s because, according to the statute, the rule must “provide for disclosure of a category or type of record … when the public interest served by disclosure outweighs the privacy, security, or other interest in keeping the record confidential.”
Officials with the Vermont Defender General’s prisoner rights office had expressed concern with that broader release of inmate records, arguing that sensitive personal information needed to be kept private.
In the rule adopted Thursday, the only records that would be made public are those in a prisoner’s “public use file,” which includes information such as an offender’s release date and where they are currently incarcerated.
Records such as grievances, even if redacted to address security or personal privacy concerns, remain off limits to the public.
Monica Weeber, DOC’s director of administrative services, told the legislative panel Thursday that while the department took into consideration “a lot of the suggestions” of the prisoner’s rights office, those submitted by VTDigger came too late in the process.
“Those comments had been provided sort of outside the scope of rule-making,” she said. “They submitted a public records request after this rule had been posted and public comments were closed.”
Weeber added that while the department did “look” at VTDigger’s response, the rule presented Thursday did not adopt the recommendations of the news organization.
“We did not incorporate grievances into this rule,” she said. “They are just confidential.”
VTDigger earlier this year sought all grievance reports, complaints and lawsuits filed in the previous year by prisoners against Chittenden Regional Correctional Facility in South Burlington, Vermont’s only women’s prison.
The request was prompted by family and friends of inmates at the facility telling VTDigger about prisoner complaints regarding living conditions and medical treatment.
The DOC then largely denied VTDigger’s request, saying that specific grievances are part of an inmate’s record, and according to existing state law, are confidential.
The department did provide VTDigger with the docket numbers of lawsuits filed over a 14-month span as well as a breakdown of grievances by category.
Those documents showed that over the 14-month period, a total of 1,444 grievances were filed. The leading category of grievances was “conflict – staff” with 235. Other top categories included “Medical: Dissatisfied with Quality,” with 153; “Medical denied,” with 117; and “Conflict – Inmate,” with 54.
In the process of communicating with corrections officials about that request, VTDigger learned of the rule-marking process underway regarding access to inmate records.
VTDigger’s attorney, Stephen Coteus of the law firm Tarrant, Gillies & Richardson of Montpelier, sent a letter in March to DOC Commissioner Michael Touchette.
Coteus wrote that the proposed rule did not include a balancing test as required by the statute taking into account the public interest against the privacy, security, or other interest in keeping a record confidential.
“Instead,” Coteus wrote, “the rule makes confidential ‘all of the information generated, collected, and maintained by DOC for any inmate or offender’ with no possibility of disclosure to the public.”
A similar concern had been raised earlier by ACLU-VT.
Coteus proposed adding to the rule the provision: “DOC shall permit anyone to review an ‘offender/inmate record,’ as defined in this rule, when the public interest served by disclosure outweighs the privacy, security, or other interest in keeping the record confidential.”
However, in drafting the rule, the DOC contended that the requirement was met as they did that balancing test when they went through each category and type of record that could be made public, not applying it on a record request by record request basis.
In the instance of grievances, as well as other records that fall outside of documents in an inmate’s “public use file,” the DOC determined they were confidential.
Rep. Robin Chesnut-Tangerman, P-Middletown Springs and the legislative rules panel chair, asked at the meeting Thursday about the issues raised by VTDigger.
“Understanding that it was outside the formal scope of rule-making, does DOC see those as valid concerns to be addressed?” Chesnut-Tangerman said.
According to Judy Henkin, DOC’s deputy commissioner, the department did consider what “categories” and “types” of records that would be public as part of drafting the new rule.
“However, grievances were not within the scope of that because of the personal nature of what is in every grievance,” she said.
Chesnut-Tangerman asked if, since inmates will have greater access to their own records, they could decide to make their documents public.
“That is correct,” Weeber said.
According to documents submitted along with the proposed rule, the DOC projected several cost increases if adopted.
The total annual cost, including staff time and paper, is estimated at $17,284 to $172,849, depending on the number of offenders requesting records, the document stated.
Also, there is projected to be a “one-time” cost of between $151,024 to $1,510,249 in the first year of the rule change associated with transitioning to electronic filing from a paper file system, according to the document. The cost will vary depending on how many requests the department receives.
One lawmaker on the panel noted the wide ranges on the projected expenses.
“There’s very little possibility that the most extreme would happen, that we would have to give 100% records to every person,” Henkin said.
Instead, Henkin said she expected the actual expenses to fall within the “midpoint” of the projections.
